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LIBRARY OF CONGRESS 



014 107 723 5 




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No, 268. 

IN ASSEMBLY, 

March 11, 1831. 

COMMUNICATION 

From the Governor, relative to the boundary line 
between this State and the State of New- Jersey. 

TO THE LEGISLATURE. 

Gentlemen, 

I consider it my duty to lay before you the accompanying com- 
munication from the Attorney-General, concerning our controversy 
with New-Jersey. The matter to which it relates, derives much of 
its importance from the grounds assumed by the Judges of the Su- 
preme Court of the United States, with regard to their powers ; and 
I feel bound to present to you my views of the subject, as well as 
the course which I feel impelled by a regard to the interests and 
honor of the State to pursue, unless you shall think proper to give 
it a different direction. 

You are apprised by the accompanying papers, and those which 
have preceded them, from the same source, of the several steps 
taken by the State of New-Jersey, to compel our appearance before 
the national judiciary, to contest with her the question of sovereignty 
over a portion of the waters of the Hudson river. 

It seems to be a mere question of sovereignty over the waters, 
inasmuch as New-Jersey admits in her bill of complaint, that what- 
ever right she may have had to the islands, those rights have been 
lostby adverse possession and the lapse of time. 

The Attorney-General, with my sanction, has hitherto declined 
to appear in court and respond to the complaint, without intending 
any disrespect to that high tribunal, and in a manner which I trust 

[A. No. 268.] 1 



2 [Assembly 

precludes the imputation of such a motive. His refusal to appear 
was grounded upon the belief, that the court has not been invested 
with the power to take cognizance of original suits, where a State 
is made a defendant party. The reasons for this opinion are more 
fully detailed by the Attorney-General, but may be succinctly stated 
as follows : 

1. It was not designed by the Constitution to confer that power 
on the court, until Congress had legislated upon it, and declared 
what controversies between States were proper to be entertained 
by the court, and what should be the mode of proceeding. The 
Constitution is silent in regard to both of these matters. A strong 
argument in favor of this construction is afforded by that clause in 
the Constitution, which, after enumerating the powers of Congress, 
adds : "To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other powers 
vested by the Constitution in the government of the United States, 
or in any department or officer thereof ." 

2. That Congress had passed no laws for these purposes. 

In 1789, a judiciary act was passed, giving writs and other pro- 
ceedings in all cases, other than those where a state was'defend- 
ant. This was a practical construction of the constitution, and 
showed their opinion that legislation was necessary to enable the 
court to proceed. And by neglecting to provide specifically, for 
proceedings in controversies between states, they indicated their 
opinion that the time had not arrived when it would be proper for 
the court to entertain such suits. The meaning of Congress is most 
distinctly marked by the wording of the judiciary act. It grants to 
* the court, the power to issue certain writs, and further, " all other 
writs not specially provided for by statute, which may be necessa- 
ry for the exercise of their respective jurisdictions, and agreeable 
to the principles and usages of law." 

Now, as no mode of proceeding, against a sovereign state, is 
known to the common law, it would seem to be a fair conclusion, 
that Congress designed, by precise and unequivocal language, to 
exclude an implication, that the power to proceed against a state 
was granted by the act. 

3. Although the court has frequently attempted to exercise this 
power, by entertaining writs against states, and summoning them to 



No. 268.] 2 

appear and answer, no state has ever obeyed their summons ; there- 
by virtually denying the power of the court. 

4. Several attempts have been made by states to prevail upon 
Congress, to pass laws for this object ; but they have uniformly re- 
fused to vest this power in the court. Two of these attempts, 
made in 1822 and 1828, are detailed in the several reports of the 
Attorney-General. 

5. The state of New-Jersey has, impliedly, admitted the want of 
power in the court, by her attempt to obtain the passage of the law 
in 1822, and by a proposition made through her commissioners, to 
the commissioners on the part of this State, in 1827, to submit this 
controversy to the Supreme Court, as an impartial tribunal to ar- 
bitrate between the parties. 

Taking the foregoing view of the subject, I did not consider my. 
self justified in permitting the State to be represented as a party 
defendant, before a tribunal which had no right to exercise authori- 
ty over us, and which, I confidently hoped, would, on a review of 
its own powers, come to that conclusion. 

But the matter has now assumed a new aspect. The opinion of 
that court shews, that they view the subject differently, or at least 
are disposed to assume the jurisdiction on an ex parte case. 

The grounds upon which, it is supposed, that the court claims 
cognizanee of the controversy, are : 

1. That ample power is given to them by that clause of the consti- 
tution, which ordains that " The judicial power shall extend to con- 
troversies between two or more states." That having the power, 
the means of exercising it are incidental, and that they may, by 
rules of court, prescribe the forms of proceeding. 

2. That the proceedings in suits before that court, prescribed by 
statute, are applicable to cases where a state is defendant, and that 
therefore Congress has legislated on the subject ; and, 

3. That the decisions of that court have been uniform, in all ca- 
ses which have come before it, and support the authority of the 
court. 

We have now reached a point in the progress of this litigation, 
where the future action of the State should be determined upon 



4 [Assembly 

with deliberation, and governed by a due sense of all the high re- 
sponsibilities resting upon us, as citizens of the United States, and 
members of a corporate state soveieignty. This State can never 
forget that she is a member of the Union, and has a large stake in 
its perpetuity. While she will permit no encroachments on the 
part of the general government, she will put forth her strong arm, in 
time of,need, to support it in the exercise of its acknowledged pow- 
ers. If, on this occasion, she is compelled to differ with the nation- 
al judiciary, I have no doubt, that she will do so firmly and dispas- 
sionately, and afford a becoming example of respect towards the 
tribunal deemed worthy, by the founders of our government, to be 
the depository of the power for preserving the psaee of the Union. 

It was undoubtedly a part of the design of our government to have 
a judicial tribunal to decide on all questions of conflicting rights, 
growing out of the limitations of the sovereignty of the States, and 
the specific delegations of power to the general government. And 
one of its special objects was to adjust amicably, all such differences 
as might arise between the States. The want of such a power, with 
sufficient energy to enforce its decisions, was one of the leading 
motives for proposing a Constitution. 

Every worthy American must be penetrated with feelings of gra- 
titude, when he contemplates the beautiful structure of our govern- 
ment, and the wonderful harmony and adaptation of its parts. The 
people, although divided into several communities, are nevertheless, 
by their compact, bound together in fraternal relations, under a 
common head, with all the same social interests, duties and feelings, 
which belong to a consolidated nation. In its great outlines, human 
wisdom could not devise any thing more perfect, to secure those 
who live under its protection, in the possession of their rights, and 
to defend them from the calamities attendant upon civil dissentions. 
It would have been essentially defective in its arrangements, if pro- 
vision for the adjustment of disputes between the members of the 
confederacy had been omitted. An appeal to arms, which is the 
only means of redress by one nation for the wrongs committed upon 
it by another, is ill suited to the condition of the members of the 
same political family. 

But in thi3 part of the system, an inherent difficulty reminds us 
of the imperfection of all human works. Our government is based 
upon a written Constitution, which is the rule of conduct for all the 



No, 268.] 5 

constituted authorities. Legislative discretion finds its limits there. 
Who shall decide when its boundaries are transgressed ? If this 
power had been placed in Congress, then not the Constitution, but 
the will of that body, would be the fundamental law of the empire. 
It is in the nature of things, that there must be an irresponsible 
power, somewhere, and in the adjustment of the parts of our gov- 
ernment, it was deemed essential to the uniformity of its action, to 
place it beyond the influence of those commotions, arising from 
popular errors, which indiscriminately destroy, and soon pass away. 
This power was, therefore, intended to be placed injudicial officers, 
rendered immoveable, save for misconduct. 

This body, being the ultimate tribunal from which no appeal lies, 
must necessarily decide, among other things, upon its own constitu- 
tional powers. The only relief from its errors rests in a resort to 
amendments of the Constitution, to an impeachment of the judges, 
and in cases of flagrant usurpations, to a refusal by the officers to 
execute its decrees, or a forcible resistance on the part of the State, 
which is sought to be subjected to its power. 

While we deny to the Supreme Court the right to bring us before 
its judgment seat, we have no reason to believe that it designs to 
usurp authority over us, or that it will persist in enforcing a jurisdic- 
tion, when it is convinced of its error. Indeed the court seem to 
invite us to a discussion of their power, in the closing part of their 
opinion, where they say, that " the question of proceeding to a final 
decree will be considered as not conclusively settled, until the 
cause shall come on to be heard in chief." 

However clear we may consider the question to be, that the court 
has no power, yet the only peaceful tribunal which has cognizance 
of the question has decided it provisionally against us, and it becomes 
a question of magnitude, whether we shall now assume an attitude 
of resistance, or whether we shall embrace the opportunity still 
presented to us, to debate the question. 

It will be proper to inquire, in the first place, if any, and what 
rights of the State will be compromised by an appearance in court, 
to contest the jurisdiction, and ultimately to try the merits of the 
dispute between the States. A resort to forcible resistance would 
be both unwise a d unbecoming in the State, except on undisputed 
ground, and at the last point of forbearance. 



6 [Assembly 

It has been feared by some, that if we should appear in court, we 
should fthereby waive our right to object to the jurisdiction in the 
subsequent progress of the cause. If a law of Congress be neces- 
sary to give effect to the Constitution, and the court takes no juris- 
diction without it, then an appearance by the State waives nothing. 
Jurisdiction cannot be conferred by an act which does not extend it 
over all the States. The Constitution or the law, or both conjoint- 
ly, may confer such a jurisdiction, but no State can bestow it either 
by implication or express consent. It is a rule of law, that the con- 
sent of a party does not give jurisdiction : a court takes no more 
power by virtue of it, than an unofficial person. The authority of 
a tribunal, created by the consent of the parties, is derived from the 
submission, and cannot be extended beyond its terms. Contending 
as we do, that the clause of the Constitution which declares, that the 
judicial power shall extend to controversies between States, is a 
dormant power, and does not attach to any tribunal until it is vivified 
by an act of Congress, our appearance, in compliance with a sum- 
mons from the court, under a protest against its proceedings, will 
admit nothing. 

But supposing that this position is untenable, and that the Consti- 
tution should be interpreted to mean to invest the court with a ju- 
risdiction, which it is unable to execute, for want of process to bring 
the party into court ; yet we have a right to contend, and I think 
we will be sustained by the court, and the enlightened sense of the 
American people, that the technical rules of law, so proper and ex- 
pedient in ordinary causes between private parties, ought not to 
apply to a case so peculiar and momentous. This case is entirely 
anomolous, involving a great and fundamental question of right. It 
is to determine the limits of power between a State sovereignty and 
an arm of the national government, beyond which there is no appeal, 
except to that which severs the bonds of the Union, and involves us 
in all the horrors of civil war. Such rights as we contend for are not 
to be controlled by technicalities, and cannot be waived by any 
implication. We have too much regard to the public peace ; too 
much respect for the constituted authorities ; too much interest in 
sustaining the National as well as State governments in their proper 
spheres, to put at defiance any branch of authority created by the 
Constitution, until argument and remonstrance are exhausted. 

We have great confidence, that should the merits of the contro- 
versy between this State and New-Jersey be examined, they will 



No. 268.] 7 

be found to rest with us. If this should be the result of an investi- 
gation before the court, it would quiet this hitherto vexatious dis- 
pute, which has so long disturbed our harmony with a sister State. 
If, however, a judgment should pass contrary to our expectations, 
and justice should not demand of us to cede the disputed territory, 
and we should still deny the authority of the tribunal, we should 
then be in as good a condition to resist the execution of the judg- 
ment, as if it had passed against us by default of appearance. 

As the court has seen fit to select the Executive and Attorney- 
General, as the proper persons to bring into their court, as the rep- 
resentatives of the State, I shall, unless otherwise directed by the 
Legislature, instruct the Attorney-General to protest against any 
waiver of right by appearing, and to appear and contest the suit in 
its progress, to its final determination. 

E. T. THROOP. 

Albany, March 10, 1831. 



REPORT OF THE ATTORNEY-GENERAL. 

Albany, February 24, 1831. 
His Excellency Enos T. Throop, 

Governor of the State of New- York. 

SIR— 

It has become my duty again to invite the attention of your Ex- 
cellency, to the suit commenced in the Supreme Court of the Unit- 
ed States, by the State of New-Jersey, against the People of the 
State of New-York. And in doing so, it may be proper to give a 
brief account of the nature and progress of this litigation. 

In June, 1829, a copy of the bill filed by the State of New- Jersey, 
and a subpoena to appear and answer, were served upon the Gover- 
nor and Attorney-General. The subpoena was directed to those 
officers, and commanded them to appear " on behalf of the people 
of the State of New-York," which they were not to omit u under 
the penalty of five hundred dollars." 

The bill filed by the State of New-Jersey, after setting forth let- 
ters patent granted by king Charles the second, to his brother 
James, duke of York, in 1664, and several other grants, proceeds as 
follows : " And your complainants respectfully insist, that by the 
fair construction of the grants before mentioned, and by the princi- 
ples of public law, the State of New-Jersey is justly and lawfully 
entitled to the exclusive jurisdiction and property of and over the 
waters of the Hudson river, from the forty-first degree of latitude, 
to the bay of New-York, to the jilum aqua, or midway of the said 
river ; and to the midway or channel of the said bay of New- 
York, and the whole of Staten-Island Sound, together with the 
land covered by the water of the said river, bay, and sound, in the 
like extent. 

" And your complainants well hoped that the people of the State 
of New-York, would have permitted your complainants peaceably 
and quietly to enjoy her said rights of property, jurisdiction and so- 
vereignty, over the said waters, and land covered with water, of 
the said river Hudson, and the other dividing waters of the Bay of 
New-York, without the interruption and disturbance of the State of 
New- York, as in justice and equity she ought to have done. But 

[A. No. 268.] 2 



10 [Assembly 

now, soft is, may it please your honors, that the people of the State 
of New-York, intending to encroach upon and aggrieve the State of 
New-Jersey in her lawful rights, at an early period of the settle- 
ment of the said States, and while they were colonies, wrongfully 
and forcibly possessed herself of the said island, called Staten-Island, 
and the other small islands in the dividing waters between the two 
States ; and your complainants then being a feeble colony, and un- 
der a proprietary government, although the right of New-Jersey 
was publicly and frequently urged to the said islands, she could 
oppose no effectual resistance to the said encroachment of the State 
of New-York, which was then under royal patronage, and her inha- 
bitants exempted from the taxation which New-Jersey was obliged 
to impose upon her citizens ; that the possession thus acquired by 
New-York, has been since that time acquiesced in, and the State of 
New-York refuses to yield up to your complainants the said islands, 
insisting that by the principles of public law, the said possession of 
the said islands, has established the title to the same in herself ; 
but your complainants insist and charge, that although it may be 
true, that the long continued possession of New-York of the said 
islands, may conclude your complainants from disturbing the same 
at this time, and which your complainants are willing, for the sake 
of peace, to admit; yet that the State of New-York has no other 
pretence of title to the said islands, on which she can rely, but the 
said adverse possession ; and that inasmuch as the said possession 
of those islands by the State of New-York, has been uniformly con- 
fined in its exercise to the fast land thereof, your complainants in- 
sist, that the title of New-Jersey to the whole waters of the Staten- 
Island Sound, remains clear and absolute in your complainants, ac- 
cording to the terms of the said herein recited grants. n The prin- 
cipal prayer of the bill is, that " the eastern boundary line between 
your complainants and the State of New-York, may by the order 
and decree of this honorable court, be ascertained and established, 
and that the rights of property, jurisdiction and sovereignty of your 
complainants to the Jilum aqua, or middle of said Hudson river, from 
the forty-first degree of north latitude on the said Hudson river, 
through the whole line of the eastern shore of the State of New- 
Jersey, as far as the said river washes and bounds the said State of 
New-Jersey, down to the Bay of New- York, and to the channel or 
midway of the said bay ; and to all the waters and the land they 
cover, lying between the New-Jersey shore and Staten-Island, and 
all other waters washing the southern shores of New-Jersey within 
and above the Narrows ; and that your complainants may be quieted 



No. 268.] 11 

in the full and free enjoyment of her property, jurisdiction and sove- 
reignty, in the waters aforesaid, and that the right, title, jurisdiction 
and sovereignty of New-Jersey in and over the same, as part of her 
public domains, be confirmed and established by the decree of this 
honorable court." 

There may be some difficulty in ascertaining from the statements 
and allegations in the bill, whether the State of New-Jersey intends 
to claim any thing more than the right of territorial jurisdiction, 
separate from the right of property in the soil. If the claim be of 
this description, it will be difficult to find a precedent for its adjust- 
ment, either in a court of law or of equity jurisdiction. And if a 
right of property is asserted, it would seem to be a case requiring a 
trial at law in some of those actions which have been devised for de- 
termining the right to real property. In the one case, a question is 
presented in relation to the jurisdiction of the court over the subject 
matter in litigation ; and in the other, a question going only to the 
form of the remedy. 

But these were questions of less immediate importance than the 
one presented by this proceeding, whether the Supreme Court of 
the United States could exercise original and compulsory jurisdiction 
over a State. Having at an early day expressed to your Excellency 
and the Legislature, an opinion that the court could not take cogni- 
zance of the suit, I deem it proper on this occasion, briefly to state 
some of the grounds upon which that opinion was founded. 

The Constitution of the United States, (Art. III. sec. 2,) declares 
among other things, that " the judicial power — shall extend to contro- 
versies between two or more States ; between a State and citizens 
of another State — and between a State, or the citizens thereof, and 
foreign States, citizens or subjects." The 11th amendment to the 
constitution declares, that "the judicial power of the United States 
shall not be construed to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United States, by citizens 
of another State, or by citizens or subjects of any foreign State." 
Without considering whether this ought to be regarded as a con- 
struction, rather than as an amendment to the Constitution, and 
conceding that the judicial power of the United States extends to 
controversies between States, it still remains to be considered, 
whether the grant of jurisdiction by the Constitution included also 
the means of carrying it into execution ; or whether those means 
were to be provided by Congress. 



12 [Assembly 

The Constitution provides, (Art. Ilf. sec. 1,) that " the judieial 
power of the United States shall be vested in one Supreme Court, 
and in such inferior courts as the Congress may from time to time 
ordain and establish ;'' but neither the number of Judges of which 
the Supreme Court should consist, or the times or places of their 
meeting, nor the amount of their compensation, was settled. These, 
with many other essential things, were left for the determination of 
Congress, in filling up the great outline that had been marked out 
by the Constitution. That legislation would be necessary in the 
organization of the new government, and its several departments, 
was foreseen and provided for by the framers of the Constitution. 
That instrument declares, (Art. I. sec. 8, sub. 17,) that " Congress 
shall have power to make alt laws which shall be necessary and 
proper for carrying into execution the foregoing powers, and all 
other powers vested by this Constitution in the government of the 
United States, or in any department or officer thereof." In this pro- 
vision a distinction is plainly recognized between a power vested by 
the Constitution in any department of the government, and the 
necessary means of carrying that power into. execution. 

There is, therefore, nothing absurd in saying, that a power con- 
ferred by the Constitution may remain dormant, if Congress, for 
any cause shall omit to pass the necessary laws for bringing it into 
exercise. Had no laws been passed, providing for the organization 
of the supreme or the other courts of the United States, the whole 
judicial power would have remained a dead letter in the Constitu- 
tion. If, after the number of Judges of which the Supreme Court 
should consist had been fixed by law, and the offices had been filled, 
no times or places had been assigned by law for their meeting, there 
would have been Judges, but no court. And if, when that court 
was duly organized, no process had been given to bring before it the 
persons to be affected by its judgments ; or if process had been given, 
without the proper officers to execute it, the court would still have 
been without the means of exercising its constitutional authority. 

Such, no doubt, were the views entertained by the members of 
the first Congress that assembled under the Constitution. They 
proceeded to pass the necessary laws for the organization of the 
federal courts, and to provide them with process, and officers to ex- 
ecute their commands. But it is believed, that neither the first nor 
any subsequent Congress has passed any such laws as were neces- 
sary for carrying into execution that portion of the judicial power 
which extends to controversies between two or more States. 



No. 268.] 13 

It is a fundamental principle in our laws, admitting of but few and 
special exceptions, that no court can give a valid judgment until it 
has acquired jurisdiction over the person of the defendant. In rela- 
tion to all those suits against individuals and corporations, of which 
the federal courts have cognizance, it is not denied that thev have 
been provided with the means of acquiring jurisdiction over the per- 
sons, (whether natural or artificial,) to be affected by their judg- 
ments. But to acquire jurisdiction over a State, it is believed that 
some other means were necessary than such writs as are " agreeable to 
the principles and usages of law ;" for the reason that there was 
never any principle or usage of law to issue writs or legal process 
of any description against a State or independent government. Nor 
is it supposed that giving " forms and modes of proceeding," in 
equity cases, " according to the principles, rules and usages which 
belong to courts of equity," can reach the case of a State made a 
defendant; for the reason that there were no pre-existing forms or 
modes of proceeding against a State, nor were there any principles, 
rules or usages by which a court of equity could acquire jurisdiction 
over an independent government. 

Without going into any particular examination of the acts of Con- 
gress relating to the judicial power of the United States, it may be 
sufficient in this place to say, that the grant of original jurisdiction 
over a State, was a new and extraordinary power: And if the fede- 
ral courts could not exercise their ordinary jurisdiction over individ- 
uals, without the authority of an act of Congress for that purpose, it 
must be apparent, that this case called for special legislative provi- 
sions. A law giving to the federal courts such " forms of writs and 
executions," and " modes of process," in the several States, as were 
then u used and allowed in the Supreme Courts of the same," would 
sufficiently provide for impleading individuals, but would make no 
advances towards carrying into execution the power to implead a 
State. 

In the case of corporations, the law had provided the appropriate 
process for compelling their appearance, and directed the mode in 
which service was to be made ; but against a State or sovereignty, 
no process for compelling an appearance had ever been devised, nor 
ha.l any means been pointed out, by which the defendant could be 
summoned to answer the complainant. It was, therefore, necessary 
in providing for the exercise of this power, either that some new 



14 [AbSEMBLT 

writ, summons or process, adapted to the case, should be given ; or 
that a new quality or efficacy should be imparted to those then in 
use. It was also necessary to direct in what manner such process 
should be served ; whetherupon the Governor, or some other officer, 
executive or judicial, or upon the Legislature of the defendant State : 
whether some person should be required by law to appear for the 
State, or under what circumstances the court should be authorized 
to proceed ex parte. The means also by which a State should answer 
the complaint, whether through its Legislature, or some one or more 
of its executive officers, were all to be provided, for the reason that 
none of those things were previously known to the laws, or to any 
forms of judicial proceedings. These are only a sample of the many 
provisions that seem to be necessary in such a case. Similar diffi- 
culties must exist in every stage of the proceeding, and instead of 
diminishing, they will be found to multiply and increase in impor- 
tance, in the consideration of the final decree or judgment to be 
rendered, and the proper means for carrying it into execution. 

Although it was not designed, in this communication, to go be- 
yond a brief statement of the leading reasons for the opinion that 
has been expressed, it may be proper to notice several cases which 
came before the court between the years 1790 and 1800, in which 
the court entertained jurisdiction against a State. The case of Geor- 
gia against Brailsford, determines nothing upon this question, for 
the reason that the State was the complainant in the bill, and so a 
voluntary party to the suit. And in relation to all the cases that 
came before the court, it is not unimportant to remark that no one 
appeared to argue against tha exercise of jurisdiction ; and in only 
two of the cases did the court deliver any opinion upon that ques- 
tion. Those were the cases of Chisholm against the State of Geor- 
gia, decided in February term, 1793, and Grayson against the State 
of Virginia, decided in August term, 1796. In the first case, the 
leading question discussed by the judges who maintained the juris- 
diction of the court, was, whether upon the true construction of the 
constitution, a State could be made a party defendant, and not whe- 
ther the means of exercising jurisdiction had been provided by Con- 
gress. Mr. Justice Iredell was the only one that entered distinctly 
into the latter question, and he arrived at the following conclusions : 
" 1st. That the constitution, so far as it respects the judicial authori- 
ty, can only be carried into effect by acts of the legislature appoint- 
ing courts, and prescribing their methods of proceeding. 2d. That 
Congress has provided no new law in regard to this case, but ex- 



No. 268.] 15 

pressly referred us to the old. 3d. That there are no [principles 
of the old law, to which we must have recourse, that in any man~ 
ner authorise the present suit, either by precedent or by analogy. 
The consequence of which, in my opinion, clearly is, that the suit 
in question cannot be maintained." 

In the case of Grayson against Virginia, after the service of a 
subpoena, a motion was made for a distringas to compel the State to 
enter an appearance ; but the court postponed a decision, " in con- 
sequence of a doubt whether the remedy to compel the appearance 
of a State, should be furnished by the court itself, or by the legisla- 
ture." Two general rules were finally adopted, the first of which 
was in the following words : " Ordered that when process at com- 
mon law, or in equity, shall issue against a State, the same shall be 
served upon the Governor, or chief executive magistrate, and the 
Attorney-General of such State." The validity of this rule mani- 
festly depended upon the power of the court to provide the means 
for impleading a State. It is true, that the federal courts were 
authorised by statute, " to make and establish all necessary rules 
for the orderly conducting business in the 6aid courts ;" but it is be- 
lieved that this was only an authority to regulate proceedings in 
cases where the court had jurisdiction by law ; and not a power by 
which jurisdiction could be acquired. The like remark is applica- 
ble to another provision, by which the courts of the United States 
were authoiised to make alterations and additions in the forms of 
writs, and in the forms and mode of proceeding. Congress made 
direct and appropriate provisions for carrying into execution every 
portion of the judicial power, except that which related to the im- 
pleading of a State. And to place, the jurisdiction of the court in 
this case, upon its power to make rules and regulate practice, is to 
suppose that Congress intended to do indirectly what it was not pre- 
pared to do by direct and specific legislation. And besides, if the 
power to make rules, and to regulate practice, was sufficient to ena- 
ble the court to exercise this new and extraordinary jurisdiction 
over a State, it was most clearly sufficient to enable the federal 
courts to exercise every other portion of their jurisdiction ; and all 
the other legislation upon this subject has been useless. 

But whether this rule was originally valid or not, it was supposed 
to be obsolete, for the reason that it was not to be found in any sub- 
sequent publication of the rules of the court. This was one of two 
rules, which originally appeared together, in the report of the case 



16 [Assembly 

of Grayson against Virginia ; one of which has been regularly 
re-published ever since, the other never, until within the past year. 
Mr. Peters, in his Reports, says, that this omission arose from the 
fact, that it was not regularly entered by the clerk at the time of its 
adoption. 

The doctrine that the Supreme Court of the United States cannot 
exercise original and compulsory jurisdiction over a State, has the 
sanction of much higher authority than any opinion I may entertain 
upon the subject. 

None of the five States sued at the period already mentioned, 
were suspected either of a want of patriotism, or of attachment to 
the Union ; yet each of those States, to wit : Connecticut, New- 
York, Virginia, South-Carolina, and Georgia, neglected or refused 
to appear and submit to the jurisdiction of the court. 

The decision of the court, entertaiuing jurisdiction/produced great 
dissatisfaction, and resulted in the adoption, by at least three-fourths 
of the States, of the eleventh amendment to the Constitution, which 
put an end to all of the suits then depending, before a final judgment 
had been recovered in either of them. 

This controversy, and others of a similar character, have existed 
for the last thirty years; and yet it is believed, that this is the first 
instance during that period, in which an attempt has been made to 
implead a State. 

It is believed, that the commissioners on the part of New-Jersey, 
ameng whom were several distinguished lawyers, manifested their 
opinion, that the court could not exercise compulsory jurisdiction 
over a State, by a proposition for a voluntary submission of the 
matter in controversy to the Supreme Court of the United States. 
See their letters to the New-York Commissioners of the 15th and 
17th September, 1827. Senate journal, 1828, appendix A. 

Bills have been repeatedly presented to Congress, " prescribing 
the mode of commencing, prosecuting and deciding controversies 
between States ;" but they have never met with the approbation of 
the Legislature. One or more of those bills were brought in by the 
Senators from New-Jersey, who are reported to have admitted in 
the discussion of the bills r as did other Senators who were in favor of 



No. 268.] 17 

bringing this power into exercise, that the Supreme Court could not 
exercise this jurisdiction without an act of Congress for that purpose, 
and that no such act had been passed. And those bills are said to 
have been opposed and rejected, not on the ground that the court 
could act without further legislation, but on the ground that the 
measure was inexpedient ; and that the harmony of the Union would 
be best preserved by leaving dormant in the Constitution that por- 
tion of the judicial power which extends to controversies between 
States. 

It is believed, therefore, that it may be truly said, that Congress 
has not only on itted, but that it has actually refused to pass the 
necessary laws for carrying into execution the judicial power over 
a State. 

It may not be improper to add, that when this case came before 
the court, in February, 1830, (3 Peters 461,) neither the counsel 
for the State of New-Jersey, nor the court itself, treated this as a 
question that had been already settled, or as one free from difficulty. 
Mr. Wirt, on behalf of New-Jersey, asked the court to assign a day 
for the argument of the question of jurisdiction, before another sub- 
poena should issue ; saying, " it might, if decided against the plain- 
tiffs, prevent unnecessary expense." And the court did assign a day 
for the argument of that question : and the Chief Justice added, 
that "if the argument should be merely ex parte, the court would 
not feel bound by its decision, if the State of New- York afterwards 
desired to have the question again argued." The court at a subse- 
quent day, and without argument, awarded further process upon the 
ground of previous precedents ; saying, however, " the State of 
New-York will still be at liberty to contest the proceeding at a 
future time in the course of the cause, if it shall choose to insist 
upon the objection." 

This question is distinct from those in which the Supreme Court 
exercises an appellate jurisdiction, where a State may have been a 
party in the court below. In all such cases, the State is plaintiff, 
and so a voluntary party to the original proceeding : and although 
the parties are reversed in the forms of proceeding in the appellate 
court, it is still a continuance of the same suit, and cannot properly 
be said to be the commencement or prosecution of a suit against a 
State. There is this further distinction, that a writ of error acts 
only upon the record, and not upon the parties to it. It is directed 

[A. No. 268.] 3 



18 [Assembly 

not to the party, but to the court in which the judgment was render- 
ed, and directs that the record be sent into the appellate court for 
review. A citation is issued, but it is only for the purpose of advi- 
sing the party, that the judgment will be reviewed ; and neither an 
appearance or any other act on his part is required. This jurisdic- 
tion does not depend upon the character of the parties, but upon the 
character of the cause : and its exercise has been amply provided 
for by the 25th section of the judiciary act of 1789. 

I submit herewith, marked D. a copy of one of the bills that have 
bea* before the Senate of the United States, on this subject. It was 
introduced by Mr. Dickerson, one of the Senators from New-Jersey, 
on the tenth day of January, 1822 ; and is entitled, " A bill prescri- 
bing the mode of commencing, prosecuting and decidingcontroversies 
between States." At the close of the paper marked D. another bill 
upon the same subject, brought in by Mr. Robbins, one of the Sena- 
tors from Rhode-Island, on the eleventh day of December, 1828, is 
mentioned, and the difference between the two bills is pointed out. 
From these bills it will be seen, that the advocates for bringing into 
exercise this portion of the judicial power of the United States, 
have considered it a matter of great delicacy and importance, and 
one requiring very special legislative provisions. Several other 
bills having the same object in view, have at different periods been 
presented to Congress, but I have only seen copies of the two al- 
ready mentioned. 

But independent of the opinion which I entertained in relation to 
the power of the court, this was a proceeding against the State in 
its sovereign capacity, and involving its territorial jurisdiction. 
And whether the State should, or should not render a voluntary 
submission to the proceeding by appearing and answering the com- 
plaint, was a question belonging either to the Governor or the Le- 
gislature, and not to the Attorney-General, or any subordinate agent 
of the government. This opinion was suggested in a communication 
to your Excellency, in July 1829, soon after the suit was instituted, 
and again in my communication in December following, which was 
laid before the Legislature by your Excellency, on the opening of 
the session of 1830. 

The bills presented to Congress, for the purpose of carrying into 
execution that portion of the judicial power which relates to con- 
troversies between States, directed that the State made a defendant 



No. 268.] ,9 

should be notified by the sendee of a eertified copy of the bill of 
complaint, and all documents, upon the Governor or chief executive 
officer of the defendant State; and that a notification should be 
ser cd by the marsball on the Legislature of the defendant State at 
he ti,ne y of serving a eopy of the bill. Those bills further prov. e * 
that no person should be permitted to aet for the defendant St te 
unless legally authorized by the Legislature thereof: and that - 
tain rules should be granted against the Legislature of the State 
mnleaded. These provisions sufficiently indicate, tha the advo- 
cates for bringing into exercise this portion of the judical power of 
the United States, thought such a proceeding of sufficient impoitanee < 
to be presented to the State in its sovereign capacity, and to be acted 
upon by its Legislature. 

The first process issued in the cause was made returnable on the 
first Monday in August 1829. The Supreme Court of the United 
States does not sit at that period in the year ; but ,t is a day or, 
which rules may be entered, in the exercise of the ordinary equity 
iurisdictioi, of the court. It was thought proper to adv.se the cle.L 
if the court, that this was not deemed a proper case for entering ; or- 
dors as of course : and a letter was addressed to h.m on the 27th of 
July, 1829, a copy of which, marked A, is hereunto annexed. The 
clerk was requested to lay that letter before the court, should the 
subject at any time be presented for its eons.derat.on. 

On the 26th day of December, 1829, 1 addressed a communication 
to your Excellency, which has been before mentioned, and which 
will be found in the legislative documents for 1830, No. 4. 

While at the city of Washington in the discharge of other official 
die" was, on the thirteenth day of January, 1830, served with z 
uoti that the Supreme Court would be moved on the thirteenth 
C of February following, to proceed ex parte in the cause and 
to take the bill filed by New-Jersey as confessed, and to render a 
dee .e il eonforniity with the prayer thereof. Not having received 
anv instructions to appear in the suit, and thinking it improper to do 

7wi*hout authority, I addressed a letter to the Chief Justice and 
associate justices of the Supreme Court, on the eve of my departure 
Zl Washington, a eopy of which, marked B, , hereunto an- 
nexed. 



20 [Assembly 

When that motion came on to be heard, the Court awarded further 
process, without passing upon the question of jurisdiction. That 
process was afterwards served, and was returnable on the second 
Monday of January last. In my communication on that subject, at 
the commencement of the present session of the Legislature, it was 
mentioned that a decision of the question of jurisdiction might be 
expected at the present term of the Court. 

On the fifth day of the present month, a motion was made on the 
part of New-Jersey, in relation to the further progress of the suit: 
and an opinion has since been delivered, and an order or deeree been 
made by the Court, copies of which, marked C, are hereunto annex- 
ed. The order is, in substance, that the complainant be at liberty 
to proceed ex parte, and that unless the defendant, being served with 
a copy of the decree sixty days before the ensuing August term of 
the Court, shall appear on the second day of the next January term 
thereof, and answers the bill, the Court will proceed to hear the 
cause on the part of the complainant, and decree on the matter of 
the bill. 

Although this order appears to be absolute, that the Court will 
proceed to a decree, the concluding paragraph of the opinion will 
shew that it was not so intended. The language of the opinion, af- 
ter stating that the Court would proceed to a final hearing and de- 
cision, is as follows — " But, inasmuch as no final decree has been 
pronounced, or judgment rendered, in any suit heretofore instituted 
in this Court against a State, the question of proceeding to a final 
decree will be considered as not conclusively settled, until the cause 
shall come on to be heard in chief." 

Two remarks are respectfully submitted upon this opinion. 

The Chief Justice and those justices who concurred with him in 
opinion, have regarded the question of jurisdiction as one that had 
been previously adjudged ; without saying what would be their 
opinions independent of the former decisions. 

The jurisdiction asserted extends only to the power of hearing the 
parties, while the question of proceeding to a final decree, (without 
which the litigation, to say the least, would be useless,) is to be 
considered as not conclusively settled. 



No. 268.] 21 

It will be seen that nothing has yet been done to prejudice the 
rights of the State, if it shall be thought proper, either as a matter 
of duty or expediency, to appear and defend the suit. But if that 
question is to be passed upon by the Legislature, it ought to be 
done before the close of the present session. 

I am, with great respect, 
Your Excellency's 

Obedient humble servant, 

GREENE C. BRONSON, 
Attorney- General. 



DOCUMENTS. 



(A.) 

Utica, (N. Y.) July 27, 1829. 

William Thomas Carroll, Esq. 

Clerk of the Supreme Court of the United States. 

SIR— 

The Governor and Attorney-General of the State of New- 
York, were recently served with the copy of a bill in equity, said 
to have been exhibited in the supreme court of the United States, 
by " The StaW of New- Jersey, vs. The People of the State of New- 
York ;" and with a subpoena in that cause, to appear on the first 
Monday of August next. 

I beg leave respectfully to say, that such service is regarded, on 
the part of the State of New-York, as utterly void ; because the 
mode adopted is unknown to the common law, is not authorised by 
any statute of the United States, nor warranted by any existing rule 
or order of the court out of which the process issued. A rule on 
the subject of the service of process upon a Slate as defendant, was 
adopted in August term, 1796, (3Dall. Rep. 320, 335) ; but this rule, 
(so far as I have observed,) has been omitted in every subsequent 
publication of the rules of the supreme court, and is no doubt ob- 
solete. 

Entertaining this view of the subject, it is supposed that no pro- 
ceeding will be had in the cause, either in vacation or at term, until 
the court shall have directed the mode of serving such process, and 
the prescribed course shall have been pursued. 

Whether the court has been clothed with power to compel the 
appearance of a State as defendant, in an original suit or proceeding, 
is a question, (among others,) which will no doubt receive from 
that high tribunal, all the consideration that its importance demands, 
before any order shall be made in the premises. 

I will thank you to hand this to the court, if the subject shall 
ever be presented to their consideration ; and should any rule'or or- 
der be made in, or affecting this cause, please send a certified copy, 
addressed to ine at Albany. 

I am sir, with great respect, 

Your obedient servant, 

GREENE C. BRONSON, 
AWy. Gen. State cf Neiv- York. 



24 [Assembly 



(B.) 

Washington City, Feb. 8, 1830. 

To the Honorable the Chief Justice and Associate Justices of the 
Supreme Court of the United States. 

A bill has been exhibited in this court by the State of New-Jer- 
sey, against the People of the State of New-York, concerning the 
boundary line between the two States ; and a subpoena to appear 
and answer, with a copy of the bill, has been served upon the Go- 
vernor of the State of New-York. A notice has recently been 
served, that on the 13th instant the court would be moved to take 
the bill pro confesso, and proceed to a decree for the want of an ap- 
pearance. 

I beg leave most respectfully to say, that the opinion is entertain- 
ed, on the part of the State of New-York, that this court cannot ex- 
ercise jurisdiction in such a case, without the authority of an act of 
Congress, for carrying into execution that portion of the judicial power 
of the United States, which extends to controversies between two 
or more States. 

The Governor of the State of New-York has made a communica- 
tion upon the subject of this suit to the Legislature, now in session, 
but it has not yet been acted upon, so far as I have been advised. 
Whether the Legislature will authorise any person to appear and 
discuss the question of jurisdiction ; or, whether for the purpose of 
obtaining a judicial decision upon the merits of an unfortunate con- 
troversy, they will order an appearance, waiving the question of ju- 
risdiction, I am, at this time, unable to determine. 

I have deemed it proper to make this communication, to explain 
what might otherwise be supposed a want of respect for this honor- 
able court, on the part of the Executive Authority of the State of 
New-York. 

GREENE C. BRONSON, 

Atiy. Gen. State of New- York. 



No. 268.] 25 



(C.) 
Opinion and Order of the Supreme Court of the United States. 

The State of New-Jersey, ] Opinion and order of the Supreme 
against f Court of the United States, deliver- 

The People of the State of [ ed by Mr. Chief Justice Marshall. — 
New- York. J January term, 1831. 

This is a bill filed by the State of New-Jersey against the State 
of New- York, for the purpose of ascertaining and settling the boun- 
dary between the two States. 

The constitution of the United Slates declares that " the judicial 
power shall extend" " to controversies between two or more States." 
It also declares that " ir. all cases affecting ambassadors, other pub- 
lic ministers and consuls, and those in which a State shall be a par- 
ty, the Supreme Court shall have original jurisdiction." 

Congress has passed no act for the special purpose of prescribing 
the mode of proceeding in suits instituted against a State, or in any 
suit in which the Supreme Court is to exercise the original jurisdic- 
tion conferred by the constitution. 

The act "to establish the judicial courts of the United States," 
sec. 13 enacts, " that the Supreme Court shall have exclusive juris- 
diction of all controversies of a civil nature, where a State is a par- 
ty, except between a State and its citizens ; and except also between 
a State and citizens of other States, or aliens ; in which latter case, 
it shall have original but not exclusive jurisdiction." It also enacts, 
sec. 14, " that all the before mentioned courts of the United States, 
shall have power to issue writs of scire facias, habeas corpus, and 
all other writs not specially provided by statute, which may be ne- 
cessary for the exercise of their respective jurisdictions, and agree- 
able to the principles and usages of law." By the 17th section it i3 
enacted "that all the said courts of the United States shall have 
power" " to make and establish all necessary rules for the ordinary 
conducting business in the said courts, provided such rules are not 
repugnant to the laws of the United States." 

"An act to regulate processes in the courts of the United States," 
was passed at the same session with the judicial act, and was de- 
pending before Congress at the same time. It enacts " that all writs 
and processes issuing from a supreme or a circuit court, shall bear 
teste," &c. This act was rendered perpetual in 1792. The first 
section of the act of 1792, repeats the provision respecting writs and 
processes issuing from the supreme or a circuit court. The second 
continues the form of writs, &c. and the forms and modes ol proceed- 
ing in suits at common law prescribed in the original act ; " and in 
those of equity, and in those of admiralty and maritime jurisdiction, 
according to the principles, rules and usages which belong to courts 
of equity and to courts of admiralty respectively, as contradistin- 
guished from courts of common law ; except so far as may have been 
provided for by the act to establish the judicial courts of the United 
States ; subject however to such alterations and additions as the said 

[A. No. 268.] 4 



26 [ASSSMBLT 

igouits respectively shall, in their discretion, deem expedient, or to 
such regulations as -the Supreme Court of the United States shall 
think proper, from time to time, by rule to prescribe to any circuit 
or district court concerning the same." 

At a very early period in our judicial history, suits were institu- 
ted in this Court against States, and the questions concerning its ju- 
risdiction and mode of proceeding, were necessarily considered. So 
early as August 1792, an injunction was awarded at the prayer of 
the Stale of Georgia to stay a sum of money recovered by Brailsford, 
a British subject, which was claimed by Georgia under her acts of 
confiscation. This wa3 an exercise of the original jurisdiction of the 
Court, and no doubt of its propriety was expressed. 

In February 1793, the case of Oswald vs. The State of New-York, 
came on. This was a suit at common law. The SUte not appear- 
ing on the return of the process, proclamation was made, and the 
following order entered by the court — " Unless the State appear by 
the first day of the next term, or show cause to the contrary, judg- 
ment will be entered by default against the said State." 

At the same term, the case of Chisholm's executors against the 
State of Georgia caine on, and was argued for the plaintiffs by the 
then Attorney-General, Mr. Randolph. The judges delivered their 
opinions seriatim ; and those opinions bear ample testimony to the 
profound consideration they had bestowed on every question aris- 
ing in the case. Mr. Chief Justice Jay, Mr. Justice Gushing, Mr. 
Justice Wilson and Mr. Justice Blair, decided in favor of the juris- 
diction of the Court, and that the process served on the Governor 
and Attorney-General of the State was sufficient. Mr. Justice Ire- 
dell thought an act of Congress necessary to enable the court to ex- 
ercise its jurisdiction. 

After directing the declaration to be filed, and copies of it to Le 
served on the Governor and Attorney-General of the State of Geor- 
gia, the Court ordered, "that unless the said State shall either in 
due form appear, or show cause to the contrary in this Court by the 
first day of the next term, judgment by default shall be entered 
against the said State." 

In February term 1794, judgment was rendered for the plaintiff, 
and a writ of inquiry was awarded, but the 11th amendment to the 
constitution prevented its execution. 

Grayson vs. The State of Virginia, 3 Dallas, 320, 1st Peters cond. 
Reports, 141, was a bill in equity. The subpoena having been re- 
turned executed, the plaintiff moved for a distringas to compel the 
appearance of the State. The Court postponed its decision on the 
motion in consequence of a doubt, whether the remedy to compel 
the appearance of the State should be furnished by the Court itself, 
or by the Legislature. At a subsequent term, the Court, " after a 
particular examination of its powers," determined that, though " the 
general rule prescribed by the adoption of that practice which is 
founded on the custom and usage of courts of admiralty and equity," 
tv still it was thought that we are also authorised to make such de- 
viations as are necessary to adapt the process and rules of the Court 



No. 268.] 27 

to the peculiar circumstances of this country, subject to the interpo- 
sition, alteration and control of the Legislature. 

We have therefore agreed to make the following general orders, 

1. Ordered, that when process at common law or in equity, shall 
issue against a State, the same shall be served upon the Governor or 
chief executive magistrate, and the Attorney-General of such State. 

2. Ordered, that process of subpoena issuing out of this court in 
any suit in equity, shall be served on the defendant sixty days be- 
fore the return day of the said process ; and further, that if the de- 
fendant on such service of the subpoena, shall not appear at the 
return day contained therein, the complainant shall be at liberty to 
proceed ex parte." 

In Iluger & al. vs. the State of South-Carolina, 3d Dallas, 339, 
the service of the subpoena having been proved, the court deter- 
mined, that the complainant was at liberty to proceed ex parte. He 
accordingly moved for and obtained commissions to take the exami- 
nation of witnesses in several of the States. 

Fowler & al. vs. Lindsey & al. and Fowler & al. vs. Miller, 3 
Dallas, 411, were ejectments depending in the circuit court for the 
district of Connecticut, for lands over which both New-York and 
Connecticut claimed jurisdiction. A rule to show cause why these 
suits should not be removed into the Supreme Court by certiorari 
was discharged because a State was neither nominally nor substan- 
tially a party. No doubt was entertained of the propriety of exer- 
eising original jurisdiction, had a State been a party on the record. 

In consequence of the rejection of this motion for a certiorari, the 
State of New-York, in August term, 1799, filed a bill against the 
State of Connecticut, 4 Dallas 1, 1st Peters Cond. Reports 203, 
which contained an historical account of the title of New- York to the 
soil and jurisdiction of the tract of land in dispute ; set forth an 
agreement of the 2Sth of November, 1783, between the two States 
on the subject ; and prayed a discovery, relief, and injunction to 
stay the proceedings in the ejectments depending in the circuit court 
of Connecticut. 

The injunction was, on argument, refused, because the State of 
New-York was not a party to the ejectments, nor interested in their 
decision. 

It has then been settled by our predecessors, on great delibera- 
tion, that this court may exercise its original jurisdiction in suits 
against a State, under the authority conferred by the Constitution, 
and existing acts of Congress. The rule respecting the process, the 
persona on whom it is to be served, and the time of service, is fixed. 
The course of the court on the failure of the State to appear after 
the due service of process has been also prescribed. 

In this case, the subpoena has been served as is required by the 
rule. The complainant according to the practice of the court, and 
according to the general order made in the case of Grayson vs. the 
Commonwealth of Virginia, has a right to proceed ex parte, and the 
court will make an order to that effect, that the cause may be pre- 
pared for a final hearing. If upon being served with a cop}' of such 
order, the defendant shall still fail to appear or to show cause to the 
contrary, this court will, so soon thereafter as the cause shall be 



28 [Assembly 

prepared by the complainant, proceed to a final hearing and decision 
thereof. But inasmuch as no final decree has been pronounced or 
judgment rendered in any suit heretofore instituted in this court 
agaTnst a State, the question of proceeding to a final decree will be 
considered as not conclusively settled until the cause shall come on 
to be heard in chief. 

Mr. Justice Baldwin did not concur in the opinion of the court 
directing the order made in the cause. 

The State of New-Jersey, Complainant, 
against 
The People of the State of New-York, De- 
fendant. 

The subpoena in this cause having been returned executed, sixty 
days before the return day thereof, and the defendant having failed 
to appear, it is, on the motion of the complainant, decreed and or- 
dered, that the complainant be at liberty to proceed ex parte; and 
it is further decreed and ordered, that unless the defendant being 
served with a copy of this decree, sixty days before the ensuing 
August term of this court, shall appear on the second day of the next 
January term thereof, and answer the bill of the complainant ; this 
court will proced to hear the cause on the part of the complainant, 
and to decree on the matter of the said bill. 

Washington, Feb. 12, 1831. 
I, Richard Peters, reporter of the decisions of the Supreme Court 
of the United States, do hereby certify, that the foregoing is a true 
copy of the order and opinion of said Supreme Court, delivered in 
the above cause by Mr. Chief Justice Marshall, at January term 
eighteen hundred and thirty-one. 

RICH'D PETERS. 



(D.) 

Bill introduced by Mr. Dickerson of New-Jersey, Jan. 10th 1822. 

A BILL prescribing the mode of commencing, prosecuting and de- 
ciding controversies between states. 

Be it enacted by the Senate and House of Representatives of the 
United States of America, in Congress assembled, That in all cases 
where any matter of controversy now exists, or hereafter may exist, 
between states in relation to jurisdiction, territory or boundaries, 
or any other matter which may be the proper subject of judicial de- 
cision, it shall be lawful for the state deeming itself aggrieved, to 
institute against the state of which it complains a suit, or suits, in 
the supreme court of the United States, by bill, in the nature of a 
bill in equity, stating all the facts, and exhibiting and referring to all 
papers and documents deemed necessary to substantiate the com- 
plaint. 

§ 2. And be it further enacted, That til suits by one state against 
another state, shall be brought, prosecuted and defended, in the le- 



No. 268.] 29 

gal and proper names of such states respectively ; and all process 
and proceedings shall be sued out and entered accordingly. 

§ 3. And be it further enacted, That no suit shall be commenced 
or prosecuted in the name of any state, as complainant, under the 
authority of this act, without the order or direction of the legisla- 
ture of the state suing; a copy of which, legally certified, shall be 
filed with the bill in the clerk's office of the supreme court of the 
United States, at the time of the commencement of the suit ; and it 
shall, moreover, be the duty of the legislature of every complaining 
state to provide for, and cause to be appointed, some fit person or 
persons to manage the prosecution of such suit, and the document 
or documents by which such appointment is made, or a copy or co- 
pies thereof, legally certified, shall accompany the bill of com- 
plaint. 

§ 4. And be it further enacted, That the state made defendant 
by any suit under the provisions of this act, shall be notified thereof 
by the delivery of a copy of the bill of complaint, and all documents 
therein referred to, legally certified by the clerk of the supreme 
court, to the governor, or chief executive officer of the defendant 
state, by the marshal thereof; and there shall, moreover, be issued 
by the said clerk, a written notification, stating when and where the 
said defendant state shall enter, in legal manner, appearance to the 
suit, and answer the bill of complaint ; a copy of which, in like man- 
ner, shall be served on the legislature of any defendant state, by 
the marshal, at the time of serving the copy of the bill and docu- 
ments above mentioned. And it shall be the duty of the marshal 
to make due return of the service of such bill, documents and notifi- 
cation, to the clerk of the supreme court, before the day specified 
for appearance, stating when and where such service was per- 
formed. 

§ 5. And be it further enacted, That no act or proceeding on the 
part of any defending state shall be permitted, but by some per- 
son or persons legally authorised by the legislature thereof, as 
manager or managers ; and not by such person or persons, until the 
instrument or document, or instruments or documents, vesting such 
power, legally certified, is or are filed in the clerk's office of the 
supreme court. 

§ 6. And be it further enacted, That the state made defendant in 
any suit, under the provisions of this act, may, by any answer or 
answers, as the case may be, state such matters of fact and law, and 
exhibit such documents as may be deemed necessary in defence; 
which said answer or answers shall be filed with the clerk of the su- 
preme court, within one year after notification of suit, in the man- 
ner hereinafter directed : Provided, however, That the court may, 
for substantial cause shown, reasonably enlarge the time for filing 
such answer or answers. 

§ 7. And be it further enacted, That the persons appointed to 
prosecute and defend any suit brought under the provisions of this 
act, shall be considered, to all intents and purposes, as representing 
the states respectively ; and all and every of their acts of record, in 
relation to the prosecution or defence of such suit, shall be deemed 
and held as valid and effectual as similar acts between individual 



30 [Assembly 

and individual ; and all notices of the time and place of taking de- 
positions, and of any act or thing necessary to be done or executed 
in the country, shall be considered and taken to be well served or 
executed on either side, by delivering to the adverse agent or ma- 
nager a written notification, as in the case of suits between individu- 
al and individual. 

§ 8. And be it further enacted, That for the purposes of ascer- 
taining boundary lines, objects referred to, and for any other pur- 
pose necessary to be done and executed in the country, in relation 
to any suit brought under the provisions of this act, it shall be law- 
ful for the court to appoint one or more fit persons as commission- 
ers, by order of record, whose duty it shall be, under the pains and 
penalties consequent upon contempts, to do and perform such act 
or acts, in the time and manner prescribed in the court's said order, 
first making oath, before some officer legally authorised to adminis- 
ter oaths, that such commissioners, respectively, will faithfully and 
impartially execute the duties specified in such order. 

§ 9. And be it further enacted, That the same rules and princi- 
ples, which are established by law, equity and practice, in the su- 
preme and circuit courts, in relation to suits by individuals against 
individuals, shall govern the said court and the parties to any suit 
or suits, commenced under this act, as to amendments and proceed- 
ings, not herein mentioned, and as to the manner of taking deposi- 
tions, the competency, admissibility, and relevancy, or right of tes- 
timony. 

§ 10. And be it further enacted, That one year after the defend- 
ant state shall have filed the answer or answers herein directed, the 
court may proceed to hear and determine the matter in controversy 
between such states : Provided, Notice of record of such hearing 
has been previously entered by one of the parties ; and no hearing 
shall be had after answer or answers filed, without such notice : And 
provided also, That the court, for good cause shown, may enlarge 
the time for such hearing, 

§11. And be it further enacted, That in case the answer of any 
defendant state shall not be filed within the time limited by this 
act, and no cause is shewn to the court why such failure has happen- 
ed, the court, on motion, shall award against the manager or mana- 
gers of the defence, if any there be, and in case there is none, 
against the legislature of such state, a rule to shew cause why the 
court should not proceed to take and consider the bill as true, and 
decree accordingly ; which said rule shall be served on the mana- 
ger or managers, or the legislature, as the nature of the case may 
require, by the marshal's delivering a sworn, or legally certified co- 
py thereof; and it shafl be the duty of the marshal to make delivery 
thereof, and certify forthwith to the court, specially, the time and 
manner of such delivery. 

§ \2. A?id be it further enacted, That at the term of the supreme 
court next after the return of -the rule served, as herein before di- 
rected, the court may, unless good cause is shewn against such pro- 
cedure, hear the bill of complaint, consider it as true, and pronounce 
such decree as may be consistent with the principles of law and 
equity. 



No. 268.] 31 

§ 13. And be it further enacted, That upon hearing any matter of 
controversy between states, pursuant to the provisions of this act, 
the court shall decree to the party succeeding, all legal and reason- 
able costs of suit, to be ascertained in the manner hereinafter di- 
rected. 

§ 14. And be it further enacted, That it shall be the duty of the 
supreme court to appoint one or more fit persons as commissioners 
to ascertain upon oath, and report specially to the court, the amount 
of all reasonable costs expended in the prosecution of any suit, un- 
der the provisions of this act, including as well pecuniary disburse- 
ments, as the service of officers ; which said sums the court may 
adjudge to be paid to the several parties or persons entitled, ac- 
cording to the nature of said report. 

§ 15. And be it further enacted, That whenever any decree shall 
be pronounced in pursuance of the provisions of this act, it shall be 
the duty of the court to cause to be delivered to the governor, or 
chief executive officer of the state against which such decree is pro- 
nounced, a legally certified copy of the decree, with a request from 
the court, that the same may, in a reasonable time, be executed : to 
cause the same to be carried into complete effect, to make any or- 
der necessary and proper for that purpose, and to issue a mandate 
or warrant to any marshal or marshals of the United States, requir- 
ing him or them to execute such decree in the manner to be pre- 
scribed in said warrant or mandate, and to make return thereof as 
in other cases. And it shall be the duty of any such marshal or 
marshals, and he or they shall be, and they are hereby authorised, 
to carry said decree into execution accordingly, and to command and 
recede assistance, and use force if necessary. And for any servi- 
ces rendered by any such marshal or marshals, in the execution of 
any such decree, as well as for any other services that shall be by 
the court required of him or them, the said marshal or marshals shall 
receive a reasonable compensation, to be adjudged of and allowed 
by the court. 



Bill introduced by Mr. Robbins, of Rhode-Island, Dec. 11, 1828. 
The title, and the first fourteen sections of this bill, corresponded 
with the title and first fourteen sections of the bill introduced by Mr. 
Dickerson. 

The 15th section was in the following words : 

" § 15. And be it further enacted, That whenever any decree shall 
be pronounced, in pursuance of the provisions of this act, it shall 
be the duty of the court to cause to be delivered to the governor, 
or chief executive officer of the state against which such decree is 
pronounced, a legally certified copy of the decree, with a request 
from the court, that the same may, in a reasonable time, be exe- 
cuted." 

A section was added in the following words : 

" § 16. And be it further enacted, That this act shall be in force 
from and after the passing thereof, for five years then next ensuing, 
and to the end of the current session of congress in which the said 
five years shall expire, and no longer." 



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